Changes to the Criminal Procedure Code: Deferred or a real reform?

01 August, 2013

The Criminal Procedure Code of Georgia is in need of various reforms. For years, the main aim of its statutes was to increase the rights of the investigative bodies and the current version of the law does not ensure equal procedure rights to the participating parties of the litigation. This topic sparked many debates during the pre-election period, during which it was mainly lawyers and nongovernmental organizations who were lobbying for the implementation of the appropriate changes.

The changes aimed at eliminating the flaws of the Criminal Procedure Code were, in part, implemented during the previous government. According to these changes:

The Accusing party (prosecutor, investigator) would lose the powers of summoning the witnesses, questioning them, and bringing them in against their will; therefore, questioning of a witness would only happen in a court, in the presence of both parties.

The current regulation violates the principle of equality since although the defending party cannot force the witness to give a testimony, the accusing body can still call for a compulsory meeting with the witness to question them. Moreover, if a witness does not comply with the obligations placed on them, they are then brought before a law enforcement body where refusal to testify is subject to a criminal liability. If this issue were resolved, it would eliminate a problem that has persisted for years. For example, not only did the police have the right to call the witness in for questioning without the decision of the judge, but in some cases, the witnesses were unable to bring in their lawyers.

We believed it crucial that the new rules were to be enforced on October 1st. It is unfortunate that the new government, which has criticized the existing regulations regarding witness interrogation, did not prove to be ready for acting out the progressive changes, and instead deferred the enactment of the new regulation to September 1, 2014. This initiative is currently being discussed in parliament, meaning that parties involved in criminal proceedings continue to bear unequal conditions, with the accusing side enjoying certain privileges. The adversarial principle between the parties, therefore, remains violated.

The second important initiative that has been deferred by the Parliament and the new government is a change initiated on February 26, 2013, which gives the defense the right to request an investigative activity in its favor. This means that the side of the defense (the lawyer) has the right to ask the court for conducting search and seizure, and to request and receive any document or evidence from the state bodies or private entities without delay. Such a regulation will aid the effective defense of an offender’s rights. It will also serve as a guarantor of the principle of equality and competitiveness. Similarly to the first initiative, however, the enactment of this change has been deferred to September 1, 2014.

It would seem that deferring Criminal Procedure Code changes is becoming a tendency.

Lawyers and the civil sector negatively asses the aforementioned “deferring policy” for various reasons. Specifically:

For years, party equality and adversarial principles were not guaranteed due to the existing flaws in the Criminal Procedure Code. Apparently, the deferral of these two initiatives indicates that the state does not have enough political will to apply fundamental changes to the procedure legislation in the near future.

By deferring the enactment of these norms, the interests of the defense are ignored. The proposed regulations regarding questioning, which have now been deferred, would have reduced the risk of the prosecution (i.e prosecutor, police, or other investigative bodies) using compulsory questioning to force the witness to gain a desired testimony. This issue is particularly pertinent to Georgia, where compulsory questioning and other methods of gaining evidence are prevalent. Another crucial reason to avert this risk is that the witness does not currently have the right to change the testimony given during questioning, and if the testimony given in the court differs from the initial testimony, the witness is subject to criminal liability.

Continuing to restrict the rights of the defense places lawyers at a disadvantage, which complicates their duty to defend the offender. In this case, the investigative bodies remain at an advantage.

The government bases its deferral of the new regulation which gives additional rights to the defense on the argument that the law enforcement bodies are not ready for new norms. However, it is unclear what kind of preparation is needed for the implementation of these two crucial norms. Providing analogous arguments for years resulted in the current problem of an inability to provide party equality in the criminal justice system, which endangers the interests of the defense side, as well as the principle of equality and the quality of justice.

Additionally, as mentioned before, it is unfortunate that those who criticized the flaws of the Criminal Procedure Code when they were in the opposition (as some of them worked directly with the issues), have radically changed their position after having come into power.

We believe that any changes must serve to eradicate the problems on a legislative or practical level, and must aim at creating a criminal justice system in which the defense and prosecution enjoy equal rights and privileges.